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[2016] ZALCJHB 163
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Boeyens v Murray and Roberts (Pty) Ltd (Projects) (JS381/15) [2016] ZALCJHB 163 (4 February 2016)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JS 381/15
In the matter between:
JAN
BOEYENS
Applicant
and
MURRAY & ROBERTS
(PTY) LTD
(PROJECTS)
Respondent
Date heard: 10
November 2015
Date delivered: 04
February 2016
JUDGMENT
EVERETT, AJ
Introduction
[1] The applicant, Mr
Boeyens, seeks a default judgment in his favour. He claims that he
was unfairly discriminated against in terms
of
section 6
of the
Employment Equity Act 55 of 1998
and automatically unfairly dismissed
in terms of
section 187(1)(f)
because of his illness and in terms of
section 187(1)(h)
of the
Labour Relations Act 66 of 1995
after making
a protected disclosure.
Evidence
[2] Boeyens testified
that he worked as boilermaker foreman at the Medupi project from May
2011 and he earned just over R43,000
per month. During October 2011,
he was diagnosed with colon cancer and when he returned to work in
November 2012, his doctor specified
that he could no longer work in
close proximity to x-ray activities. He was placed at the fabrication
area.
[3] In April 2013,
Boeyens was told to go back to the boilers. He refused because of his
health and this was accepted by the manager,
Mr Swanepoel. The
supervisor, Mr John Kennedy, was apparently unhappy with this.
[4] In about August 2014,
Boeyens noticed that certain employees were unlawfully using company
material to make braais and he reported
this. He believed this was a
protected disclosure and that he had a duty to report the conduct.
Kennedy was unhappy about this
and a week later, he made threatening
remarks to Boeyens.
[5] Shortly after this
incident, the employer required Boeyens and Kennedy to undergo
polygraph tests. Boeyens was found to have
shown deception
(apparently relating to the altercation with Kennedy) whereas Kennedy
was not. Following the polygraph test, Boeyens
was given notice to
attend a disciplinary hearing. He was charged with deliberately
supplying incorrect and falsified information
and dishonesty. The
results of the polygraph test were used at the hearing and he was
dismissed.
[6] Boeyens referred a
dispute to the Metal and Engineering Industries Bargaining Council
and the matter was set down for con-arb
on 30 October 2014. Boeyens
attended but asked for postponement of the matter because the
employer had “a lot of management
and its legal representatives
present” and he (Boeyens) also wanted to arrange legal
representation. The commissioner refused
the application and Boeyens,
feeling bulldozed, walked out of the process.
[7] The commissioner
issued a certificate stating that the matter remained unresolved
after conciliation. The commissioner also
issued a ruling dismissing
the matter because Boeyens was not in attendance.
[8] Subsequently, Boeyens
sought legal advice and he referred an unfair discrimination dispute
to the CCMA. A certificate in respect
of this dispute was issued on
25 February 2015.
The nature of the
Applicant’s claims
[9] This court has
noticed a tendency on the part of applicants to frame and reframe a
dispute in terms of every conceivable cause
of action in the apparent
hope that at least one will succeed. This may be an abuse of dispute
resolution processes or merely a
misunderstanding of the scheme of
workplace discrimination law in South Africa and, in particular, how
the
Labour Relations Act and
the
Employment Equity Act operate
.
[10] The applicant in his
“statement of legal facts” alleged the following, which
demonstrates total confusion and repetition
of the causes of action
that may be brought in terms of the LRA and the EEA (my emphasis):
‘
The respondent
unfairly
discriminated
against him
after he was dismissed
at a disciplinary hearing which the applicant beliefs (sic) was an
automatically unfair
discrimination practice
in
that the Respondent took action to:
o
Discriminated against the
Applicant to let him work in an unsafe working environment
being fully aware of the Applicant’s
medical conditions and disability in terms of
section 6
of the EEA
[that is, unfair discrimination] and
section 187(1)(f)
of the LRA
[that is an automatically unfair dismissal where the reason for
dismissal is discrimination];
o
Discriminated against the
applicant in terms of
section 187(1)(f)
of the LRA directly or
indirectly on an arbitrary ground by dismissing the Applicant after
he made a protected disclosure in terms
of
section 186(2)(d)
[that
is, a type of unfair labour practice] and
section 187(1)(h)
of the
LRA [that is dismissal for making a protected disclosure];
o
The dismissal is an
automatically unfair
discrimination
and was
unfair in terms of
section 187
of the LRA and
section 6
of the EEA.’
[11] The applicant also
alleged the following under “unfair discrimination”:
‘
- …an
occupational
detriment
as defined in the PDA
and
also discrimination directly or indirectly on arbitrary grounds
in terms of
section 6(1)
of the EEA
- …
dismissal in
breach of
section 3
of the PDA constituting an automatically unfair
dismissal
in terms of
section 187(1)(h)
and
187
(1)(f), read in
conjunction with
section 4(2)(a)
of the PDA and
section 51(1)
of the
EEA
[12] Finally, the
applicant claimed relief, summarised as follows:
‘
1.
24 months’ salary for
dismissal
on the grounds of
automatically
unfair discrimination;
2.
An order declaring that the
applicant made a protected disclosure;
3.
An order declaring that
Respondent in harassing, intimidating, disciplining and ultimately
dismissing the applicant constitutes
an occupational detriment as
defined in the PDA;
4.
An order declaring the
dismissal automatically unfair in terms of
section 187(1)(h)
;
0
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5.
24
months’ compensation;
6.
Costs of suit.’
[13] In an attempt to
make some sense of these claims, and based on the statement of claim
and the evidence presented, the applicant
alleges:
13.1
unfair
discrimination on basis of illness and the protected disclosure he
made [s 6 of the EEA];
13.2
an
automatically unfair dismissal on arbitrary grounds, due to a
protected disclosure
(s 187(1)(h)
and on the basis of discrimination
[s 187(1)(f)]; and
13.3
an
occupational detriment in terms of the PDA, which is a type of unfair
labour practice dispute [s 186(2)(d)];
13.4
Discrimination
for exercising a right conferred by the EEA [s51(1) of the EEA].
[14] These are related
but different claims even if they arise from the same set of facts.
Unfair discrimination is claimed in terms
of
section 6
, read with
section 10
, of the
Employment Equity Act whereas
an automatically
unfair dismissal is claimed in terms of
section 187
of the
Labour
Relations Act. An
unfair labour practice relating to a protected
disclosure is claimed under
section 182(2)(d)
of the LRA and it
excludes a dismissal.
[15]
Section 10(1)
of the
EEA states:
‘
In this section, the word
‘dispute’ excludes a dispute about an unfair dismissal,
which must be referred to the appropriate
body for conciliation and
arbitration or adjudication in terms of Chapter VII of the
Labour
Relations Act.’
[16
] This makes it clear
that discrimination disputes must be distinguished from dismissal
disputes and the two types of disputes have
different dispute
resolution procedures.
[17] Automatically unfair
dismissal disputes must be conciliated by the CCMA or a bargaining
council with jurisdiction and may then
be adjudicated by the Labour
Court, unless the applicant earns less than the threshold and elects
CCMA arbitration. In this case,
no automatically unfair dismissal
dispute was referred to the CCMA or the MEIBC, nor conciliated by the
CCMA or the MEIBC. The
only dismissal dispute that was referred and
conciliated was the dispute about unfair dismissal for misconduct
which was correctly
referred to the bargaining council.
[18] In dismissal
disputes, the law is clear that there must be an attempt to
conciliate the dispute before it can be adjudicated
by the Labour
Court. This is evident from the structure of the dispute resolution
system contained in the LRA and it has recently
been confirmed in the
Constitutional Court decision of
NUMSA
v Intervalve (Pty) Ltd
.
[1]
[19] In this case, no
dispute concerning automatically unfair dismissal, whether in terms
of
s 187(1)(f)
or
s 187(1)(h)
, was referred or conciliated. Given
that there was no attempt to conciliate the dispute about an
automatically unfair dismissal,
there is no basis for the Labour
Court to adjudicate that matter. I should mention in passing that one
of the advantages of conciliation
(even if it fails to resolve the
dispute) is that it assists parties to identify the real dispute
between them and going through
this process would in all likelihood
have filtered out the multiple types of automatically unfair
dismissal disputes that have
been alleged.
[20] I turn now to the
occupational detriment alleged in terms of
section 186(2).
This is a
type of unfair labour practice dispute and it specifically excludes
dismissal following protected disclosure in order
to avoid
duplication because there is specific provision for such a dispute as
a form of automatically unfair dismissal. A dispute
in terms of
section 186(20(d)
also has a specified dispute resolution procedure:
Such dispute must be conciliated by the CCMA or a bargaining council
and it
must be referred to the Labour Court within 90 days. In this
case, again, there is no referral relating to such a dispute and
obviously
no attempt to conciliate it. Again, the applicant’s
claims in relation to an occupational detriment must be dismissed on
this basis.
[21] I turn now to the
claim of discrimination for exercising a right conferred by the
Employment Equity Act [s
51(1) of the EEA]. Besides that no factual
basis was set out for this claim, or any indication of which right is
in question (unless
it is a duplication of the right not to be
dismissed for making a protected disclosure), this dispute must, in
terms of
section 52(1)
and (2), be referred to the CCMA for
conciliation and an attempt to conciliate must have been made. Such a
dispute cannot be brought
directly to the Labour Court for
adjudication because there is specific provision for conciliation.
[22] Finally, I turn to
the unfair discrimination dispute which was indeed referred to
conciliation and an attempt to conciliate
it was made. This,
accordingly, is the only dispute which is adjudicable.
[23] In his referral to
the CCMA, Boeyens described his dispute as follows:
‘
I informed my employer about my
working conditions. Result in to my illness obtain in work. They did
not want to listen and suddenly
started with unlawful disciplinary
actions against me thus discriminating against me.’
[23] At the time of the
referral, the applicant was alleging that he was discriminated
against because of his illness and this resulted
in unlawful
disciplinary action against him.
[24] The first question
to determine is whether the applicant was treated differently because
of his illness.
Section 6(1)
of the EEA provides that:
‘
(1)
No person may unfairly discriminate, directly or indirectly, against
an employee,
in
any employment policy or practice
,
on one or more grounds, including race, gender, sex…
disability… or any other arbitrary ground (my emphasis).’
[25] Disability is a
listed ground, whereas illness is not. However, illness may be
regarded as analogous as the consequences of
serious illness are very
similar for the afflicted individual to those of disability.
[26]
Section 11(2)
of the
EEA provides:
(1)
If unfair discrimination is alleged on an arbitrary ground, the
complainant must prove,
on a balance of probabilities, that -
(a)
the conduct complained of is not rational;
(b)
the conduct complained of amounts to discrimination; and
(c)
the discrimination is unfair.
[26] Boeyens’
evidence was that when John Kennedy wanted him to move to operations
that were close to x-rays, he objected
and the manager supported him.
The outcome was that he was not required to move. Kennedy may have
been unhappy with the outcome
but there is no question that
management took into consideration Boeyens’s medical condition
and acted fairly towards him
by not requiring him to move.
[19] The employer’s
conduct did not amount to unfair discrimination and this would be so
even if the employer bore the onus
as per
section 11(1)
of the EEA.
The employer clearly accommodated Boeyens’s medical condition.
There is, accordingly, no merit in the claim of
unfair discrimination
on the basis of illness.
[26] In any event,
Boeyens’s evidence did not support his contention that he was
discriminated against on the basis of his
medical condition. His case
was that it was because of the protected disclosure that he was
discriminated against.
[27] Making a protected
disclosure is clearly not a listed ground, nor can it be regarded as
an arbitrary ground of discrimination.
First, a protected disclosure
is an act committed by a person which then results in certain
consequences whereas a ground of discrimination
refers to a
characteristic or attribute which is associated with belonging to a
particular group. In
Harksen
v Lane NO
,
[2]
the Constitutional Court held:
‘
What the specified grounds have
in common is that they have been used (or misused) in the past (both
in South Africa and elsewhere)
to categorize, marginalize and oppress
persons who have had, or
who
have been associated with these attributes or characteristics
(my
emphasis).’
And in
President
of the RSA and Another v Hugo
,
[3]
Judge Goldstone said:
‘
At the heart of the prohibition
of unfair discrimination lies a recognition that the purpose of our
new constitutional and democratic
order is the establishment of a
society in which all human beings will be accorded equal dignity and
respect regardless of their
membership of particular groups.’
[28] Second, the LRA
makes specific provision for disputes about occupational detriments
and dismissals following a protected disclosure
and that is the
appropriate route to follow. As stated above, that dispute was not
framed as such, nor referred to conciliation,
nor conciliated and
this court cannot adjudicate it.
[23] Boeyens’s
remedy lay in claiming an ordinary unfair dismissal which is where he
started this process and he was in the
correct forum which had
jurisdiction to arbitrate – that is, the bargaining council.
Had he not walked out of the con-arb
process, whether in temper or on
a whim, his situation may have been very different.
Order
[25] I make the following
order:
1.
The
applicant’s claim of unfair discrimination on basis of illness
and the protected disclosure he made is dismissed.
2.
The
applicant’s claim of an automatically unfair dismissal on
arbitrary grounds, due to a protected disclosure
(s 187(1)(h)
and on
the basis of discrimination [s 187(1)(f)] is dismissed.
3.
The
applicant’s claim of an occupational detriment in terms of the
PDA is dismissed.
4.
The
applicant’s claim of discrimination for exercising a right
conferred by the EEA [s 51(1) of the EEA] is dismissed.
5.
There is no
order for costs.
_________________
Everett,
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES
For
the Applicant:
M.E Coetzee
Instructed
by:
Manong Badenhorst Inc.
For
the Respondent:
Unopposed
[1]
[2015] 3 BLLR 205 (CC).
[2]
1997 11 BCLR 1489
(CC) at para 47.
[3]
[1997] 6 BCLR 708
(CC) at para 41.